In response to an email from a dear reader who has asked why I have not mentioned to current state of affairs of the Tymoshenko trial, I will give a brief update although I am loathed to do so.
Why am I loathed to do so? Because it is a single case and getting too involved in commentary on single cases is normally ill-advised, particularly when there has been no final decision relating to her fate. Yes I have flirted with this issue in previous posts as it is hard to completely ignore the trial and would be wrong to do so.
As I have written before, I am not interested in the personalities involved, my interest is with the foreign policy of Ukraine and the EU relating to other policy areas and how this matter may affect progress with those more than anything else.
Anyway, as things stand, the trial has been adjourned and will begin again in a fortnight. Some claim this is in response to a joint letter to the Ukrainian authorities from the US Secretary of State and EU High Representative. Maybe, maybe not. Maybe it is because President Yanukovych is at the UN next week. Maybe it has nothing to do with either.
There is therefore some truth in the fact that this trial is political, even if it may or may not have any justification within the laws of Ukraine.
I am not a lawyer, so I cannot comment with any authority over the relevant laws of Ukraine (despite obviously being able to find them and read them) and certainly not over any interpretation of said laws.
Whilst I may understand a fair amount of Ukrainian, it is not my strongest language of the region and half of the court proceedings were broadcast and subsequently reported in Ukrainian and Russian. Therefore I have a far better understanding of what was said and reported in Russian than that reported and said in Ukrainian. That is of course nobody’s fault but my own but as every other day can still be something of a learning curve with Russian, so taking on Ukrainian language simultaneously is probably far too much for this tired old brain to cope with.
There is also very little point when Russian is still the first language of choice for many in Odessa and certainly those I interact with here.
So when it comes to evidence of misuse of office is there any or are all those calling this a politically motivated show trial correct? After all the rules were either broken or not when doing the gas deal in question with Russia.
So far as I can tell, and let me be quite clear that I am not following this as closely as others, there would appear to be grounds for the investigation. Whether what has followed is justified or not is open to debate quite obviously.
It seems that back in January 2009, as then Prime Minister, Ms Tymoshenko signed a directive authorising the deal between Russia and Ukraine that is now being claimed as a poor deal. We should remember at this time parts of the EU were not looking forward to another cold winter because of problems between Russia and Ukraine. Therefore avoiding supply issues to the EU and keeping people warm in Ukraine had domestic and external political brownie points for Ms Tymoshenko. She will have been under a great deal of pressure to resolve the issue, but as I have written before, even if the deal is bad (and it is certainly not good), poor judgment is not a crime.
This directive obliged the then Naftogaz boss to sign the deal with Gazprom.
The whole point of any court hearing is therefore to determine whether Ms Tymoshenko had the right to generate this directive and subsequently encourage/coerce the Naftogaz boss to sign the deal or not. This being Ukraine, refusal to carry out the will of any political leader results in at the very least dismissal and there is no need for that to be spelled out although it often is and/or inferred.
It seems that any such directive according to some legal sources in Ukraine, must be authorised by the entire government and not on the whim of the Prime Minister alone. This was not done and thus it is claimed, the directive was not a legal document and all actions thereafter illegal. The inference being the Naftogaz boss was coerced into signing the gas deal with Russia (or lose his job) on a document he may have believed (or not) to be legal.
Ms Tymoshenko does not seem to deny the existence of the directive in question and some media sources have quoted her at the trial saying “I presented my instruction, which was entitled a ‘directive'” .
She is also quoted in the media as having stated “I want to let it be known once again, the directives I signed on 19 January 2009 were obligatory for all the officials of Naftogaz. Otherwise they would have been fired.”
I will point out that I have not heard her say these things and even if she had, she would have chosen to speak Ukrainian which would make any interpretation I made somewhat less reliable than if she had spoken in Russian.
Ukrainian journalism is not always a reliable source of either fact or accurate quote. In fact unless I see and hear the words come out of the mouth of those alleged to have said something on TV, I sometimes wonder at the the naive or even disastrous statements some people are reported to have made. That said, having seen numerous naive or disastrous statements made by Ukrainian politicians, many remiss reported quotes are indeed accurate despite being beyond belief.
There in a nutshell, is the entire case against Ms Tymoshenko relating to the Russian gas deal. The directive she used to insure the Naftogaz boss signed the gas deal with Russia was either within or external of the rules of Ukrainian government. Ergo it is either a misuse of office or she was within her rights and followed protocols. Everything else is window dressing.
Did she misuse her office as the prosecutors claim? I have no idea as I have not seen the directive in question, spoken with members of the then government or any other witnesses. If she is found guilty and sends her case to the ECHR I will still be none the wiser as I will still not see any evidence. Undoubtedly if she feels she is innocent and is found guilty then she will follow the ECHR route as many Ukrainian citizens have in the past.
If I have found anything particularly interesting in this case it has been the actions of Ms Tymoshenko in relation to the movement of the EU. We must remember that she and her party are associated with the EPP, the biggest umbrella party in the EU parliament who have been steadfast allies in her times of trouble thus far. However, the EU parliament is not doing the negotiating with Ukraine over the DCFTA and AA, that is the realm of other EU structures.
Earlier in the year, Ms Tymoshenko was in Brussels and stated that the EU should postpone the signing of agreements on the basis that her nemesis President Yanukovych was stifling democracy. Unfortunately for her she either underestimated the importance of the DCFTA and AA to the EU or overestimated her importance and the EU carried on regardless.
When this became clear, she then stated sometime in June/July (I forget the date), “I ask you to under no circumstances to tie up counteraction to political repressions, counteraction to criminal persecution with signing of the agreements on political association and the free trade.” A statement that was undoubtedly going to be the case regardless of whether she made it or not but was of course for domestic consumption should there be a need for apparent political martyrdom.
However, as this particular trial draws to closing arguments and therefore a ruling (and other trails wait her in the wings over similar claims of misuse of office), and obviously fearing the worst having managed to get herself remanded in custody, she has made an accomplished U turn on the above highlighted statement and called, via The Times on 11/9/11, for the EU not to complete the DCFTA and AA stating it would be “playing into the hands of Yanukovych and his gang” and going on to state “They want you to believe that authoritarian rule that he has introduced is the best that Ukraine can offer. They want the world to close its eyes on the death of Ukrainian democracy, so that they can get to their business as usual.”
I am not the only one to pick up on this radical reversal of a reversal of position. Is this a principled position taken in the interests of Ukraine or a self-serving one? We can only speculate given that she has adopted both a “for” and “against” continuance of the DCFTA and AA positions.
Is it likely the EU, with so much at stake and in times of nothing but bad news, would abandon such a major geopolitical victory so close to the finishing line?
The answer came in the form of a European Commission statement on 13/9/11 in which it states, “The European Union has no plans to change its approach to the negotiations, which envisage the conclusion of a single agreement on association, including a deep and comprehensive free trade area.”
Whether there will be another reversal of the current reversal taking us back to Ms Tymoshenko’s statement in June/July and a willingness for political martyrdom to the benefit of Ukraine we will see. She must surely now recognise that the DCFTA and AA are separate issues to her current personal plight in the eyes of the EU. (Something I have alluded to consistently here.)
Will Ukraine buckle to the political coercion of the EU and US if there is a genuine case to answer? Will Ukraine carry on regardless if there isn’t a case to answer and this is indeed politically motivated?
You will have to keep up with events yourselves as I very much doubt I will comment on this matter again until it is over.
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